In my previous article about Trump’s declaration of a national emergency, I expressed concerns over my country’s lurching into authoritarian rule, while acknowledging that we have systemic protections that hold us back from that disaster. One such defense is our separation of powers — or that is supposed to be a defense, though Congress during this century has shirked the duty to be a co-equal branch. And now a sitting justice of the Supreme Court, Clarence Thomas, has declared his wish to come to the defense of public figures who feel themselves to have been defamed, the inevitable implication being that presidents are among the people he has in mind.
Thomas was responding to an appeal in McKee v. Cosby, a lawsuit that arose out of the accusations going back and forth between Bill Cosby and his victims. The Supreme Court as a whole decided not to hear the appeal, but Thomas chose to insert a broader assertion about defamation generally, claiming that in an originalist reading of the First Amendment and libel law, someone who is defamed only has to show that “a false written publication that subjected him to hatred, contempt, or ridicule.” He makes this position worse by saying that “Truth traditionally was not a defense to libel prosecutions — The crime was intended to punish provocations to a breach of the peace, not the falsity of the statement.”
As I have discussed elsewhere, Thomas’s view is the one that used to be standard in constitutional interpretation. Thomas Healy’s book, The Great Dissent goes through what Thomas is treating as the originalist position, the notion that freedom of speech and press is merely a guarantee against prior restraint. In that view, the government cannot stop you from expressing yourself, but woe be unto you if what you say offends someone who holds official power or the blessing of expensive lawyers. And, of course, the First Amendment, which today is treated with awe by advocates of human rights — and justly so — at first only applied to the federal government, not to the states. The incorporation doctrine, exercising the authority of the Fourteenth Amendment’s guarantee of due process, has gradually expanded the protections provided in the Bill of Rights for each person, regardless of whether the attempted restriction is imposed by local, state, or federal action.
Oliver Wendell Holmes, the justice at the heart of the transition in thinking about the First Amendment, recalls in his book about Ralph Waldo Emerson an exchange between Emerson and a fellow student in which the latter wrote an essay about Plato. Emerson advised that “when you strike at a King, you must kill him.” The idea here is that if you take on one of the revered figures of a field, you had best bring overwhelming force, whatever force means in the given context. With regard to the implications of Thomas’s opinion, the context here is the ability to criticize a leader who can employ the enormous power of the government against the person expressing the critique.
Freedom of expression — whether we are talking about newspapers, blogs, comments to friends in a coffee shop, or whatever other means creative people are able to come up with — is one of the core rights both of a free society and of the human condition. This is especially true if we are committed to the idea that our leaders operate with the permission of the people, not out of some divine mandate.
And this is the problem with Thomas’s opinion. We have been debating the limits of presidential power throughout our history. Jefferson’s purchase of the Louisiana territory, Lincoln’s suspension of habeas corpus in the border states, Franklin Roosevelt’s imprisoning of Japanese Americans all challenged our notions of how much the executive branch may exceed the Constitution, and in more recent decades, the restraints on such behavior have been frayed both by a world that moves much quicker and by a legislature that is unable to achieve consensus.
There is an argument for a powerful executive as culture and technology grow in potential and complexity. Nuclear weapons and international air travel that can carry viruses across the globe in hours are examples of the kind of risks that have to be addressed in less time than a legislature can act. This makes the ability of the people — the press specifically, but the rest of the country as well — to criticize all the more important. Thomas’s opinion, taken to its conclusion, would end with presidents who can silence any argument that annoys them. This, tied with an unrestrained ability to declare emergencies and then to rule by fiat, would be the death of freedom.
For much of his time on the court, Thomas has been an outlier. Now that Gorsuch and Kavanaugh have joined him, he has an opportunity to do damage the fundamental principles of rule of law and individual rights. If we do not speak out, if we do not vote for our own best interests and demand that our elected leaders listen to the people from whom they derive their power, the exercise of basic rights in the future will be much more costly.